Chapter 2.30   HEARING EXAMINER

Sections:


2.30.010   Creation and purpose.

A.

Creation. The city creates the office of hearing examiner consistent with Article XI, Section 11 of the Washington State Constitution, and Chapters 35A.63 and 58.17 of the Revised Code of Washington, as currently written or hereafter amended.

B.

Purpose. The purpose of this chapter is to provide an efficient and effective system for appeals of land use decisions, code enforcement violations, and other regulatory and administrative actions taken by the city; to provide for consistency and predictability in certain land use decision-making; to establish clear and understandable rules for the application of policies and regulations adopted by the city; and to provide for fair and impartial determinations of appealed matters while ensuring procedural due process.

(Ord. 857 § 3, 2008)

(Ord. No. 899, § 1, 4-16-2009)

2.30.020   Definitions.

As used in this chapter, unless the context clearly requires otherwise, the words defined in this section shall have the indicated meanings.

"Department" means the community development department for the City of Black Diamond.

"Director" means the community development director for the City of Black Diamond.

"Examiner" means the regular hearing examiner or hearing examiner pro tem for the City of Black Diamond.

(Ord. 857 § 4, 2008)

2.30.030   Appointment and term.

The examiner shall be appointed by the mayor with confirmation by the council, and shall serve at the pleasure of the mayor. The examiner shall be appointed based on his or her qualifications for the duties of the office and shall have the necessary training and experience in land use and related legal matters to conduct administrative or quasi-judicial hearings, and to render decisions according to law. The examiner shall hold no other classified, appointive, or elected position in city government. The examiner shall suggest an examiner pro tem to serve in the event of his/her absence or disability, or in the event of a conflict of interest. The appointment of an examiner pro tem is expected to be infrequent in nature. The mayor will confirm the appointment of an examiner pro tem, in writing, and specify the term of service. Confirmation of appointment of an examiner pro tem is not required by the council. The examiner pro tem will be entitled to the same compensation as the examiner during his/her term of service.

(Ord. 857 § 5, 2008)

2.30.040   Compensation.

The examiner may be retained on a professional service contract on terms deemed appropriate by the mayor with any necessary approval for budget purpose, by the council. The contract shall specify that the examiner serves at the pleasure of the mayor, and that the examiner has authority to suggest appointment of an examiner pro tem to the mayor, to serve in the absence or disability, or in the event of a conflict of interest of the examiner.

(Ord. 857 § 6, 2008)

2.30.050   Conflict of interest.

A.

The examiner shall not conduct or participate in any hearing or decision in which:

1.

The examiner has a direct or indirect personal interest; or

2.

The examiner has a beneficial interest, directly or indirectly, in any aspect of the matter on which he or she is called upon to issue a decision; or

3.

The examiner has a direct or indirect familial interest which might influence or interfere with his or her decision-making process or give rise to a violation of the appearance of fairness doctrine as codified in Chapter 42.36 RCW as written or hereafter amended, and the common law.

B.

The examiner shall disclose matters involving ex parte contacts, conflicts of interest or appearance of fairness issues prior to or at the beginning of any matter or immediately upon becoming aware of the need for such disclosure. The examiner shall recuse himself or herself if the examiner believes his or her review of the matter would represent a conflict of interest or violate the appearance of fairness doctrine as set forth herein.

C.

In the event the examiner recuses himself or herself, an examiner pro tem will be appointed, according to BDMC Section 2.30.030.

(Ord. 857 § 7, 2008)

2.30.060   Improper influence.

No city official either elected or appointed shall attempt to influence the examiner in any matter officially before him or her so as to constitute misconduct by a public officer under Chapter 42.20 RCW, as written or hereafter amended, or that would constitute a violation of the appearance of fairness doctrine as codified in Chapter 42.36 RCW, as written or hereafter amended.

(Ord. 857 § 8, 2008)

2.30.070   Organization and rules.

A.

Organization. The examiner operates independently of any department of the city, but will receive such administrative assistance from the director as is necessary to carry out the functions of his or her office.

B.

Rules. The examiner shall have the power to prescribe rules not in conflict with this chapter for procedural matters including adopting procedures for pre-hearing conferences, the scheduling and conduct of hearings, the submission of legal motions, briefs and other written documents, the scheduling of discovery, issuance of subpoenas for the attendance of witnesses or the production of information, receipt of evidence, and issues relating to settlement.

(Ord. 857 § 9, 2008)

2.30.080   Powers.

A.

General. The examiner shall receive and examine all information in the official file, conduct hearings and administer preparation of the official record and issue a written a recommendation or a written decision on the matter. The examiner is authorized to impose conditions on the applicant's proposal, consistent with federal, state and local law. The examiner is authorized, as applicable, to hear and decide issues related to a taking of private property for public use without just compensation, and/or the denial of substantive due process of law, in addition to challenges to imposition of conditions or exactions on a project, whether based on constitutional, statutory or common law.

B.

Specific. In addition to the general authority as granted herein, the examiner shall have the specific authority granted to him or her in other chapters of the Black Diamond Municipal Code.

C.

The city council may, from time to time, grant to the examiner additional powers and authority as the council deems appropriate, consistent with state law and city code, ordinances and resolutions.

(Ord. 857 § 10, 2008)

2.30.085   Filing an appeal.

Unless prohibited by another section of the municipal code or other law, any regulatory decision or civil code enforcement action by the city may be appealed to the city's hearing examiner, including but not limited to denial of a permit and application of zoning or other land use policies and regulations. Such request for an appeal hearing must be in writing and must briefly describe the basis of the appeal, and must be postmarked or hand delivered to the city clerk no later than ten business days after the date of the decision being appealed. Requests transmitted via telephone, email, or facsimile shall not satisfy the requirements of this section.

(Ord. No. 899, § 2, 4-16-2009)

2.30.090   Staff report to the examiner.

The department shall coordinate and assemble the reviews of other city departments and governmental agencies having an interest in the subject application and shall prepare a report summarizing the factors involved and the department's findings, conclusions, and recommendations. The report shall be filed with the examiner and copies thereof shall be mailed to the applicant and made available for public inspection at least five working days prior to the scheduled hearing, unless otherwise provided in the ordinance governing the specific application or appeal.

(Ord. 857 § 11, 2008)

2.30.100   Public hearing.

Before rendering a decision or recommendation on any application or appeal, the examiner shall hold one open record public hearing thereon. The department shall, in coordination with the examiner, be responsible for assigning a date and assuring due notice of public hearing for each such application or appeal. Notice of the time and place of the public hearing shall be given as provided in the ordinance governing the application or appeal. If none is specifically set forth, such notice shall be given at least ten days prior to such hearing. The public hearing shall be conducted in accordance with the ordinance governing the ap plication or appeal and such other rules as the hearing examiner may adopt pursuant to BDMC Section 2.30.080.

(Ord. 857 § 12, 2008)

2.30.110   Examiner's decision.

A.

All decisions or recommendations of the examiner must be supported by findings of fact and conclusions of law. The findings of fact must be supported by substantial evidence in the record and the conclusions of law must be based upon the policies of the comprehensive plan, subdivision regulations, environmental regulations, the standards set forth in the various land use codes of the city, or any other relevant plan, regulation, federal or state law, case law, growth management hearings board decisions, or any other applicable law. Decisions or recommendations of the examiner may be to approve, conditionally approve, or deny the application or appeal.

B.

All decisions or recommendations of the examiner will be rendered within ten working days following the conclusion of all testimony and hearings and closing of the record, unless otherwise provided in the ordinance governing the specific application or appeal, or unless a longer period is mutually agreed to by the applicant or appellant and the examiner. Upon issuance of the examiner's decision, the examiner will transmit a copy of the decision to the director and, by certified mail, to the applicant or appellant and by regular mail to other parties of record.

(Ord. 857 § 13, 2008)

2.30.120   Reconsideration.

A.

Any party of record may, within seven working days of the date of the examiner's written decision, file with the department a written request for reconsideration based on any one of the following grounds: errors of procedure, errors of law or fact, error in judgment, or the discovery of new evidence which was not reasonably available at the open record public hearing.

B.

The request shall set forth the specific errors or new information relied upon. The department shall forward the request for reconsideration to the examiner within three working days. Upon receipt of a request for reconsideration, the examiner will review the request in light of the record and take such further action as is deemed proper, including, but not limited to: denying the request; granting the request; reopening the record and public hearing process, and may render a revised decision. The examiner shall take such action as he or she deems appropriate within ten days of receipt of the request. The decision of the examiner will be subject to reconsideration only one time, even if the examiner reverses or modifies the original decision.

C.

The filing of a request for reconsideration shall effectively stay the appeal period until the examiner issues his or her decision on the request.

(Ord. 857 § 14, 2008)

2.30.130   Effect of decision.

Unless specifically provided for elsewhere in this chapter or in another applicable ordinance, the decision of the examiner shall be the final administrative decision of the city and may be appealed by a party of record with standing to the King County superior court pursuant to Chapter 36.70C RCW. A petition for a judicial appeal must be filed within twenty-one days of the issuance of a decision.

(Ord. 857 § 15, 2008)

2.30.140   Failure to appear—Default judgment.

Failure of appellant to appear for a scheduled hearing after proper notice of the hearing has been provided shall result in a default judgment being entered by the hearing examiner in favor of the city, affirming the action or decision taken by the city that was the subject of the appeal, provided, the hearing examiner may, at his or her discretion, nullify the default judgment and reschedule the hearing should appellant, within twenty-four hours of failing to appear, provide the hearing examiner with good cause for failing to appear. At the city's request, the costs of the missed hearing shall be assessed by the hearing examiner against the appellant.

(Ord. No. 899, § 3, 4-16-2009)

2.30.150   Notice of decision.

A copy of the hearing examiner's decision shall be served upon the appellant in person or by regular first class mail to the most recent address provided to the city by appellant, or, if the appellant has not provided an address, to any address for the appellant that is maintained in the city's current utility billing records, most recent county tax rolls, or current department of licensing records. When notice of a hearing examiner's decision has been given as required in this section, failure of appellant to receive such notice shall not relieve the defendant of the responsibility to pay any fees imposed or to take any other actions ordered in the hearing examiner's decision.

(Ord. No. 899, § 4, 4-16-2009)

2.30.160   Violation of order of hearing examiner—Gross misdemeanor.

A.

Any person who intentionally violates or refuses to comply with an order of the hearing examiner shall be guilty of a gross misdemeanor punishable by a fine not to exceed five thousand dollars and imprisonment not to exceed three hundred sixty-five days, or by both such fine and imprisonment. Each day or portion thereof during which the violation or non-compliance continues shall constitute a separate violation.

B.

Nothing in this chapter shall limit the right of the city to pursue all other lawful legal remedies and penalties for continued violation of, or non-compliance with, an order of the hearing examiner.

(Ord. No. 899, § 5, 4-16-2009)